The National Coalition Against Domestic Violence (“NCADV“) indicates that one in three women and one in four men have experienced some form of physical violence by an intimate partner. The form of domestic violence these statistics refer to includes a range of behaviors, such as slapping, shoving, or pushing. One in seven women and one in twenty-five men have been injured by an intimate partner. And one in four women and one in seven men have been victims of severe physical violence (e.g. beating, burning, strangling) by an intimate partner in their lifetime.
These troubling statistics mean that there is a strong likelihood that some sort of domestic violence, minor or severe, has touched at least one party in a divorce or child custody matter. A domestic violence divorce triggers many significant implications on divorce and SAPCR lawsuits. First and foremost are the ways that courts can keep victims safe. Second, Ch. 153 of the Texas Family Code contains provisions that help victims of domestic violence take back their power through the divorce process. Click here for more general information about getting a divorce in Texas.
Courts use protective orders to keep victims of domestic violence safe. If police arrest your spouse or partner for assault family violence, courts may issue an Emergency Protective Order (“EPO”). Even without an arrest, a court can issue a Temporary Ex Parte Protective Order upon proof of family violence. Since EPOs and Ex Parte Orders only last a short period of time, courts have the ability to issue Final Protective Orders that can last up to two years.
Protective orders provide courts and law enforcement ways to keep victims of domestic violence in Texas safe. Keep in mind that these court orders, however, do not create an impenetrable forcefield. If your estranged spouse or the other parent of your child violates any term of a protective order, call the 911. Police can arrest the violator of the protective order for a Class A Misdemeanor the first time they fail to follow the court’s order. A second violation, especially if it takes place within twelve months of the first, triggers a third-degree felony.
Family Violence Defined
Texas Family Code §§ 71.0021 and 71.004 define family violence as:
- Violence by a member of the family or household against another member of the family or household;
- Abuse by a member of the family or household against a child of the family or household; or
- Dating violence against a member of a dating relationship or third party.
Family violence in the context of a divorce or child custody matter is defined much more broadly than it is in the criminal context where prosecutors must prove bodily injury or strangulation beyond a reasonable doubt. In a divorce or SAPCR, family violence includes conduct that is intended to result in physical harm, bodily injury, assault, sexual assault, or conduct that a reasonable person would perceive as a threat of physical harm, bodily injury, assault, or sexual assault.
Ex Parte Order
Texas Family Code Ch. 83 authorizes courts to grant a Temporary Ex Parte Protective Order when there is a clear and present danger of family violence. These protective orders last up to 20 days unless a judge extends it. These orders can be requested at any time and do not have to be connected to a SAPCR or divorce suit. The person applying for a Temporary Ex Parte Protective Order attaches a sworn affidavit to their application that describes evidence of family violence.
For a court to issue a Temporary Ex Parte Protective Order that forces the other party to leave their home, the court must find:
- The applicant must have resided in the home within 30 days preceding the application;
- The person to be removed from the home committed family violence within 30 days preceding the application; and
- There is a clear and present danger that the person to be removed from the home will commit family violence in the future.
Emergency Protection Order
The Texas Code of Criminal Procedure § 17.292 authorizes a Texas magistrate to grant an Emergency Protective Order without a hearing. These orders arise out of an arrest for assault family violence. They can force a person to remain away from their home for 31 to 61 days, can prohibit contact with individuals protected under the order, and must be considered by a judge in a divorce or SAPCR. Emergency Protective Orders can be requested by the complainant, police, the prosecutor, or the judge herself.
Final Protective Order
Final Protective Orders are designed to extend the Temporary Ex Parte Protective Order for 20 days up to 2 years. These Final Protective Orders can be issued when the applicant proves by a preponderance of the evidence that family violence occurred and will likely occur again in the future. Since these protective orders can last up to 2 years, the opposing party must be given notice and the opportunity to contest the application at a hearing. Courts must consider the existence of a Final Protective Order when making custody determinations.
Texas Custody Laws
In a domestic violence divorce, a finding of family violence carries tremendous consequences impacting child custody. Texas Family Code § 153.004 commands judges to consider credible evidence of domestic violence during the two years preceding a custody suit and while the suit is pending. Credible evidence of family violence includes any evidence that a parent has a history or pattern of past or present child neglect or a history of physical or sexual abuse that has been directed against the other parent, a spouse, or a child. Courts have found credible evidence of family violence based on as little as one incident or threats and gestures that never resulted in a bodily injury.
A finding of family violence can trigger the following consequences:
- Courts cannot name parents joint managing conservators
- This means that, if left up to the judge at trial, one parent will be named sole managing conservator and the other possessory conservator
- The parent accused of committing family violence can still convince the judge that he or she should be named sole managing conservator
- The judge must consider evidence of family violence when deciding whether to restrict or limit the possessory conservator’s access to the child
- The court may prohibit the accused parent from visiting the child if the other parent proves family violence took place by a preponderance of the evidence
- A conviction for assault family violence is per se grounds to modify a child custody agreement
In a domestic violence divorce, the victim acquires considerable power and leverage once she or he proves the existence of family violence. The victim can use that leverage to negotiate a more favorable custody and property division settlement. And if the case goes to trial, Texas divorce and custody laws strongly favor victims of domestic violence.
Filing for Divorce in Texas?
If you find yourself in a domestic violence divorce, call the Law Office of J. Barrett Wilson. Justin has years of experience dealing with the criminal side of domestic violence and uses that experience to help his family law clients. He’ll fight to keep you safe and put you in a position of strength as you navigate your divorce of SAPCR. Contact us for a consultation.